Dougherty v. Stepp

18 N.C. 371 (1835)

Quick Summary

Dougherty (plaintiff) owned unenclosed land which Stepp (defendant) entered and surveyed, claiming it as his own. The dispute centered on whether such actions without physical alteration constituted trespass.

The Supreme Court of North Carolina concluded that any unauthorized entry onto land is considered trespass, regardless of enclosure status, leading to a reversal of the lower court’s verdict for Stepp and granting a new trial for Dougherty.

Facts of the Case

Dougherty owned a plot of unenclosed land. He alleged that Stepp trespassed on his land by entering it with a surveyor and chain carriers and surveying the land while claiming it as his own. However, Stepp did not mark any trees or cut any bushes during this process.

Dougherty brought an action for trespass against Stepp, arguing that every unwarrantable entry on another man’s soil is considered a trespass because, in contemplation of law, every man’s land is separated from his neighbor’s by either a material or invisible boundary. Therefore, every entry carries some damage, even if it is just treading down and bruising the herbage and shrubbery.

The trial judge instructed the jury that Stepp’s actions, if true, did not constitute a trespass. The jury found a verdict for Stepp, concluding that merely surveying the land without marking trees or cutting bushes was insufficient to support a trespass claim.

Procedural Posture and History

  1. Dougherty filed an action for trespass against Stepp in Buncombe Circuit Court, presenting evidence that Stepp entered his unenclosed land with surveying equipment.
  2. The trial judge instructed the jury that Stepp’s actions did not constitute a trespass.
  3. The jury rendered a verdict in favor of Stepp.
  4. Dougherty appealed the decision to the Supreme Court of North Carolina, arguing that any unauthorized entry onto another’s land constitutes trespass.

I.R.A.C. Format


Whether entering and surveying unenclosed land, without marking or altering the terrain, constitutes trespass.

Rule of Law

Every unauthorized intrusion into the land of another, is a sufficient trespass to support an action for breaking the close, whether the land he actually enclosed or not. And from every such entry the law infers some damage; if nothing more, the treading down the grass or shrubbery.

Reasoning and Analysis

The Supreme Court of North Carolina found that the trial judge erred in instructing the jury that the defendant’s actions did not constitute a trespass. The Court emphasized that any unauthorized entry into another’s property is legally considered a trespass. The Court stated that damages can be inferred from such entry, even if minimal, like treading down grass or shrubbery.

The Court further clarified that the right to recover damages in cases of trespass does not hinge on whether the land is cultivated or enclosed. The fact that Stepp claimed ownership during the unauthorized entry only aggravated the wrongful nature of his actions. Thus, the Court determined that Stepp’s entry onto Dougherty’s land was indeed an act of trespass.


The Supreme Court of North Carolina reversed the trial court’s judgment and held that Stepp’s unauthorized entry onto Dougherty’s land constituted a trespass. The case was remanded for a new trial consistent with this opinion.

Key Takeaways

  1. Unauthorized entry onto another person’s land constitutes trespass, whether or not the land is enclosed.
  2. The law assumes some form of damage occurs from every act of trespass, even if it is as minimal as damage to grass or shrubbery.
  3. Claiming ownership while trespassing can exacerbate the severity of the intrusion and does not justify or excuse the act.

Relevant FAQs of this case

What legal theories underpin the concept of trespass?

The legal theory underpinning trespass is the inviolability of property rights, which implies that any unauthorized entry onto another’s property without consent is a trespass. This theory applies even to intangible intrusions such as noise, emissions, or vibrations that can interfere with the owner’s use and enjoyment of their land.

  • For example: A loud construction site near a residential area may be considered a form of trespass if the noise significantly impairs the residents’ enjoyment of their homes.

In what ways does the law balance between the protection of property rights and the necessity of common use of space?

The law balances protection of property rights with common use by recognizing easements, right-of-ways, and public necessities which allow certain uses of property by others without it amounting to a trespass, provided these uses are within legal permissions or agreements.

  • For example: A power company may have an easement that allows them to enter private properties to maintain utility lines while preventing them from being liable for trespass.

How do courts typically assess damages in cases where a trespass has caused no apparent physical harm to the property?

Courts assess damages in such cases by considering the loss of property value, the cost of restoring the property to its original condition, or nominal damages to acknowledge the violation of the owner’s rights, even in the absence of quantifiable economic harm.

  • For example: An unlawful encampment on someone’s land that leaves no damage upon vacating might still result in nominal damages awarded to the landowner for the trespass.
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